Apartheid was a crime against humanity and the evidence is irrefutable

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Nkosinathi Thema
Webber Wentzel, Cape Town
nkosinathi.thema@webberwentzel.com

In Detention^[1]

He fell from the ninth floor
He hanged himself
He slipped on a piece of soap while washing
He hanged himself
He slipped on a piece of soap while washing
He fell from the ninth floor
He hanged himself while washing
He slipped from the ninth floor
He hung from the ninth floor
He slipped on the ninth floor while washing
He fell from a piece of soap while slipping
He hung from the ninth floor
He washed from the ninth floor while slipping
He hung from a piece of soap while washing.

Introduction

According to Article 1(1) of the International Convention on the Suppression and Punishment of the Crime of Apartheid (the 'Convention'), ‘[the] Convention declares that apartheid is a crime against humanity and that inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination… are crimes violating the principles of international law, in particular the purposes and principles of the Charter of the United Nations, and constituting a serious threat to international peace and security.’

Article 1(2) of the Convention goes on to declare ‘criminal those organisations, institutions and individuals committing the crime of apartheid.’ The crime of apartheid as defined in the Convention includes, among other things, ‘denial to any members of any racial group the right to life and liberty of person: by murder of members of any racial group, by the infliction upon members of any racial group of serious bodily or mental harm, by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment, and by arbitrary arrest and illegal imprisonment of members of any racial group or groups.’

From 1963, the South African government could detain anyone without trial for as many years as it pleased. This it did with tens of thousands of people, with and without the declaration of a formal state of emergency.

However, today, 26 years after South Africa’s transition into a new democratic dispensation, some still refuse to acknowledge and accept that apartheid was a crime against humanity.

Using the law to right past injustices

Over the past three years, various organisations, including the Pro Bono Department of Webber Wentzel, have been working tirelessly to reopen inquests into the deaths of various anti-apartheid activists who died at the hands of the state, and particularly that of the 'Security Branch', the secret police who had the cover of the law to commit heinous acts during apartheid.

To date, the inquest into the death of Ahmed Timol has been re-opened; the re-opened inquest into the death of Dr Neil Aggett is currently underway; and much work is being done to ensure the re-opening of the inquest into the death of Imam Abdullah Haron. Although only one of these inquests has reached conclusion, the evidence that has been uncovered and led in court has shown the brutality with which the apartheid regime suppressed activists’ voices, further reaffirming that apartheid was indeed a crime against humanity.

The case of Ahmed Timol

Ahmed Timol, a teacher and apartheid activist, died on 27 October 1971 at John Vorster Square in Johannesburg,the police station at which many atrocities were committed against anti-apartheid activists and where the Security Branch sought to cover up these atrocities in many ways. When he died five days after his arrest at a roadblock, the police claimed he leaped out of the tenth-floor window at John Vorster Square. The 1972 inquest into his death ruled that no-one was to blame – justice was not the aim of that inquest. In 2017, over 20 years after South Africa's transition, the inquest into the death of Timol was the first to be re-opened in terms of the Inquests Act of South Africa. After weeks of testimony, the High Court held that Timol had been pushed out of the window during a period of interrogation and torture, and that the Security Branch had the requisite intention of murdering Timol.

The case of Dr Neil Hudson Aggett

Dr Aggett was a medical doctor, trade unionist and anti-apartheid activist. Eleven years after Timol, he too was detained by the same notorious Security Branch at John Vorster Square. On 5 February 1982, he was found hanging from a type of sarong, an item of clothing that would have been strictly prohibited, along with belts and shoelaces. Yet, the 1982 inquest into his death held that the cause of death was suicidal hanging and that the death was not brought about by any act amounting to an offence on the part of any person. In January 2020, with years of legal and forensic work to back it up, the inquest into Dr Aggett’s death was re-opened. The evidence led to date, including that of former Security Branch members, illustrates the brutal and sophisticated methods of torture that were used by the apartheid regime against activists. As commented by Moray Hathorn of Webber Wentzel who represents the Aggett family, ‘I think we have begun to find our way closer to the truth.’

The case of Imam Abdullah Haron

Imam Abdullah Haron was a salesperson for a sweets company, an Islamic cleric and an anti-apartheid activist from Cape Town. He was found dead in a police cell in 1969, after four months in detention under the Terrorism Act. The inquest that followed believed the Security Branch’s version that a slip on some stairs was the major cause of the Imam’s death. For a dossier to motivate the reopening of his inquest, new expert opinions have been obtained and similar fact evidence has been gathered.

Truth, reconciliation, and justice

When South Africa transitioned into the current democratic dispensation, a Truth and Reconciliation Commission (TRC) was established as a means of fostering justice and reconciliation in South Africa. The TRC, established under section 2 of the Promotion of National Unity and Reconciliation Act (the 'Reconciliation Act'), had restorative justice at its foundation. The nature of a forum such as the TRC was not new or unique – Rwanda pursued a similar route through the Gacaca courts following the genocide in that country in 1994.

Many South Africans, especially those who bore the brunt of the brutality of the state and police at that time, had hoped that the perpetrators would have been held accountable and that prosecutions would have taken place. However, unlike the Gacaca courts in Rwanda, once the TRC concluded its work, there were no prosecutions and apartheid was rendered a crime without a perpetrator. It is at this very point that the Reconciliation Act failed to bring about any meaningful reconciliation, reparations or justice for many South Africans.

In addition to providing closure for the families of the almost 200 activists who died at the hand of the Security Branch, the reopening of the above inquests is also an important step in holding the perpetrators of these violations accountable, even posthumously. The perpetrators are being given faces and, at long last, South Africans are given insight of who exactly was responsible for the many atrocities which took place under a legal cloak of secrecy.

Apartheid can only be accepted as a crime against humanity when you accept the humanity of its victims. To deny that it is was a crime against humanity is to strip away the victims' dignity and this places a burden on them to prove their humanity which is in itself a demeaning task. Perhaps then, these inquests and the many others that are to follow will finally allow South Africans to move towards healing the scars caused by the apartheid regime.

To quote Kylie Thomas writing in The Conversation, ‘[t]he re-opening of these cases creates the possibility for the perpetrators to be tried for committing crimes against humanity. This has the potential to radically shift how people think about what apartheid was, how it continues to affect the present, and how people experience and understand impunity and injustice.’^[2]

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